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Affirmative Action and Equal Employment Opportunity

Objective: Gain an Understanding of Affirmative Action and Equal Employment Opportunity

Laws, regulations, and executive orders require various employers to engage in affirmative action to increase the applicant supply of individuals in protected classes that are under-represented. Employees that believe they are victims of illegal discrimination have the legal right to bring those complaints to the Equal Employment Opportunity Commission. These two important processes are discussed in the following section.

Affirmative Action

Affirmative action is the process by which employers engage in employment practices designed to eliminate the present effects of past discrimination. Affirmative action can be voluntary or involuntary. Voluntary affirmative action is engaged in by organizations that realize that is good business practice and the right thing to do. These employers understand that diversity in the workforce often creates a positive image for the organization, which could result in improved organizational performance, increased customer loyalty, and improved employee recruitment and retention programs. In these cases, a written formal affirmative action plan might or might not be developed.

However, as discussed previously, many organizations are required to develop and implement, if indicated, formal affirmative action plans as required by Executive Order 11246, the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Act of 1974. In general, the following employers must develop and implement, if appropriate, written affirmative action plans (AAPs) and submit them to the Office of Federal Contract Compliance Programs on an annual basis:

  • Federal contractors and subcontractors with 50 or more employees and $50,000 in government contracts during any 12-month period
  • Depositories of federal funds
  • Issuing or paying agents for United States savings bonds and savings notes

In addition, certain other employers might also be required to submit written affirmative action plans. The courts can require employers in certain instances to prepare and implement AAPs. Also, employers might agree or be required to submit affirmative action plans as part of consent agreements negotiated under the auspices of state or federal courts.

In November of 2000, the OFCCP issued new regulations designed to simplify the AAP development process. The new regulations require an organizational profile using either a workforce analysis or an organizational display, a job group analysis, an availability analysis, a utilization analysis, and goals and actions, if appropriate. These topics are discussed in the following sections, as are several judicial issues dealing with affirmative action.

Organizational Profile

An organizational profile displays information on the composition of the organization by gender and ethnicity. It provides an overall view of the composition of the organization. An organizational display is a graphical presentation by organizational unit. An organizational unit is defined as one that has one or more managers that have authority to make employment decisions such as hiring and firing. Each managerial/supervisory level is listed along with the gender and ethnicity of the manager(s)/supervisor(s). The numbers of employees supervised by each manager are listed along with each employee’s gender and ethnicity.

A workforce analysis was the required method of presenting the organizational profile prior to the new regulations in 2000. It provides the number of employees in an organizational unit by job title, ordered by rate of pay, and each employee’s gender and ethnicity.

Job Group Analysis

A job group analysis aggregates the information from the organizational profile based on job titles, regardless of which organizational unit they are assigned to. Thus the job group analysis provides an overall picture of the organization by job title. The difference between the organizational profile and the job group analysis is often explained with the analogy that the workforce analysis provides a vertical slice of the organization by departmental unit, whereas the job group analysis provides a horizontal view by job groups.

Availability Analysis

An availability analysis is a two-factor examination in which the organization evaluates the availability of minority and women candidates potentially available for the job groups determined in the job group analysis. It is called a two-factor analysis because two distinct factors or sources of workers must be considered. The first factor is those internal employees that could be promoted or transferred to the job with appropriate training. The second factor is the availability of workers with appropriate skills from the relevant recruitment area. An availability analysis shows the candidate pool potentially available to fill jobs in each job group by gender and ethnicity.

Utilization Analysis

A utilization analysis compares the availability analysis for each job group with the job group analysis. The purpose of the comparison is to determine whether underutilization exists. Underutilization exists if a protected class constitutes a lesser percentage in the organization’s workforce than it does in the availability analysis. Underutilization can be determined using a variety of methods, including

  • Any difference rule in which underutilization is determined to exist any time the current workforce percentage for a protected class does not equal the availability analysis percentage in a particular job group
  • The 4/5ths rule previously discussed in which the current workforce percentage of a protected class must be at least 4/5ths (80%) of the availability analysis percentage in a particular group
  • The two standard deviations rule in which the current workforce percentage of a protected class cannot vary from the availability analysis percentage by more that two standard deviations

Goals and Actions

If underutilization is indicated in any protected class, goals must be set for bringing the utilization up to parity and action decided on to achieve those goals. In the case of multiple areas of underutilization, multiple goals are required.

The issue of goals has gathered considerable controversy over the years. The regulations consider goals to be targets that the organization will make reasonable good-faith efforts to achieve. They are not to be mandatory quotas. However, many argue that goals are, in fact, de facto quotas.

The organization must develop action plans to achieve the goals, including appropriate programmatic activities. Activities typically include targeted recruiting and training and development programs designed to increase the applicant supply pool of underutilized protected groups.

The organization must develop internal auditing and reporting systems to monitor its progress toward achieving goals. After a goal is reached, affirmative action activities with respect to that goal must cease.

Judicial Issues and Affirmative Action

Three issues raised in the courts should be discussed: reverse discrimination, quotas, and the "glass ceiling." The issues are interrelated in that quotas create reverse discrimination. Precedent case law was discussed earlier in this chapter. Case law is often conflicting and confusing, and is still evolving. As a general statement, current court decisions trend toward conservatism in the use of affirmative action programs, limiting the situations in which such programs can be engaged in largely to those in which past discrimination is evident.

Reverse discrimination occurs when an equally qualified or more qualified member of a nonprotected class (generally white male) is not hired or promoted in favor of a member of a protected class. Preferential treatment and quota systems can create situations in which reverse discrimination is created. Court decisions in this area tend to strongly support prohibitions against reverse discrimination and protect valid affirmative action initiatives. Obviously this is a gray area and dependent on the situation in each instance.

Quotas are created when all individuals that are not members of a targeted protected class are excluded from consideration for a position. In the absence of a valid bona fide occupational qualification, case law prohibits firm quotas in affirmative action plans. In general, law and the courts permit the consideration of protected class status as one factor in employment decisions if there is evidence of past discrimination. However, protected class status cannot be the only criteria except in very narrowly defined situations.

Nothing in affirmative action law and regulations requires organizations to hire unqualified candidates. Affirmative action activities where there is no underutilization or history of past discrimination are generally found to violate Title VII. Affirmative action plans and activities are designed to be temporary in nature. Affirmative action means that employers attempt to place protected class members in jobs in which the class is under-represented. Continuation of these activities after the goal is achieved is illegal.

Glass ceilings and glass walls (also referred to as glass elevators) are concepts associated with affirmative action and illegal discrimination. Whereas affirmative action activities might result in hiring members of under-represented protected classes, such actions do not guarantee that those individuals will rise to the highest levels of the organization. Glass ceilings is a concept that means that protected class individuals are promoted only so far in the organization and then reach a seemingly impenetrable barrier in which they can see the top of the organization but cannot achieve promotion to it. The Civil Rights Act of 1991 created a Glass Ceiling Commission to study barriers to the advancement of women and minorities in the workforce and to recommend means of overcoming those barriers.

Glass walls or glass elevators is the phenomenon that occurs when women and minorities are hired into nonrevenue-producing staff functions that do not normally lead to high-level executive positions and are prohibited from transferring into other occupations within the organization. Public relations, corporate communications, and HR are often given as examples of nonrevenue-producing functions.

Affirmative action plans, consequently, must be concerned not only with getting protected classes into the organization, but also with moving them up the organization. Activities such as mentor programs, lateral transfers to revenue-producing departments, and developmental programs are often implemented by organizations to improve the potential for promotion of members of protected classes to alleviate both glass ceilings and glass walls.

EEOC Complaint Process

The SPHR must have a general understanding of how the EEOC processes complaints. An in-depth discussion is beyond the scope of this book and the SPHR is advised to seek legal counsel to comply with EEOC regulations and properly defend the organization. Following the discussion of the complaint process itself is a brief discussion regarding employer response to a complaint. The process has been amended several times by law or new regulations issued by the EEOC. The process can be summarized as follows:

  • Initiation of the complaint What might seem simple can be a bit complex in that the complainant often is covered under two or more separate antidiscrimination laws. The basic rule is that an employer must file a complaint within 180 days of the alleged discrimination. However, the EEOC permits local and state equal employment opportunity agencies to process and attempt to settle federal discrimination complaints. In these cases, the local or state agency typically has exclusive jurisdiction for the first 60 days after complaint filing. If a state or local agency has jurisdiction, the individual has 300 days from the date of the alleged discriminatory action or 30 days from the date of receipt that the state or local agency has terminated its processing to file a charge with the EEOC, whichever is earlier.
  • Determination of jurisdiction The EEOC determines whether it has jurisdiction. If not, the complaint is rejected. For example, a complaint against an organization that has five employees is not covered under the Civil Rights Act of 1964.
  • Initial acceptance and request for information If the EEOC has jurisdiction, it accepts the complaint and advises the employer that a complaint has been filed against it, generally within 10 days of receipt of the complaint. It simultaneously sends the organization a Request for Information form that the employer must complete and return.
  • EEOC investigation The EEOC next determines the level of investigation that it wants to pursue base on a priority lists. Full investigations are normally conducted on charges that appear to involve matters that have been targeted as priorities. Lesser levels of investigation are required for complaints that appear to have some merit, but require additional information and little or no investigation might be done on complaints that appear to require dismissal.
  • Depending on the level of investigation, the EEOC requires the organization to produce certain records. In full investigations, the EEOC often requires the production of voluminous records. The organization, in addition to the records required, provides an explanation and its defense of the alleged violation. In complex or priority cases, an EEOC investigator might visit the organization to review records or talk to individuals having knowledge of the complaint.

    If the investigation reveals that no discrimination has taken place, the EEOC issues a Dismissal and Notice of Rights Letter. The complainant may then pursue the case in the court system. If there appears to be reasonable cause to believe that illegal discrimination has occurred, the EEOC issues a Letter of Determination, also referred to as a cause letter.

  • Conciliation After the Letter of Determination is issued, the EEOC attempts to get the organization and complainant to settle the case. This often involves continuing negotiation and conciliation efforts. The EEOC has begun a program of offering the parties voluntary mediation (a process discussed in Chapter 6, "Employee and Labor Relations") to speed up complaint processing and settlement.
  • Final action If attempts at conciliation fail, the EEOC has two options. First it can initiate suit against the employer. As a practical matter, the EEOC is likely to undertake this action only when the complaint involves a number of employees. The second option is more likely and that is the issuance of a Right-to-Sue letter. This permits the complainant to purse the case in court.

Employer Response to a Complaint

On receipt of notification that a complaint has been filed with the EEOC, an organization should take the following steps:

  • Review the complaint and the employment records of the complainant.
  • Take no retaliatory action against the complainant.
  • Conduct an internal investigation regarding the allegations contained in the complaint.
  • Cooperate, to the extent possible, with the EEOC. EEOC investigations can be quite burdensome for the employer with massive and, sometimes, seemingly irrelevant requests for information and analysis. The scope of these requests can often be reduced through negotiation with the EEOC investigators.
  • If the agency issues a cause letter, the organization must determine whether to settle or to fight the complaint in the court system. The decision is often a difficult one, taking into consideration the merits of the complaint, costs of defense, and ethical implications. An organization might elect to defend itself in court even though the costs of such a defense might run much more than the cost of settlement. The SPHR must lead the organization in these matters, attempting to determine the importance of the case to the organization and the message the decision will send to stakeholders and, most importantly, the employees.
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